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Wills and Trusts

Brief Summary of Pets in TrustsRebecca F. Wisch (2008; updated 2010)

According to a Gallup Poll conducted in 2007, 59% of Americans own a cat or dog. Most of these same people view their companion animals as members of the family. The importance people place upon companion animals has only increased in recent years, both in terms of the amount of money spent on them and the reported emotional value owners place upon those pets.

Despite this, most pet owners are unaware or uninformed as to what might happen to their pets should they die or become incapacitated. This is especially significant considering the fact that the American population is aging.

Historically, owners were frustrated in their attempts to leave money to care for their pets, both during life or after death. Those who did attempt to create some sort of “trust,” found them invalidated because these pets were viewed as personal property. Since property (the pet) cannot legally own property (the money in the trust), these trusts failed. These trusts also failed because the pet could not legally be a beneficiary to the trust.

This began to change in the 1990's when states began to enact pet trust laws after the Uniform Probate Code (UPC) was changed to allow the creation of pet trusts. Sparked by this concern for our companion animals, many states, 39 in fact, have enacted what are termed "Pet Trust Laws." Attorneys in these states can now help concerned pet owners construct trusts that operate in the event of an owner’s death or disabling life events.

A pet trusts allows a person to set aside a sum of money to care for the pet. This may occur in regular disbursements of the funds, or in the manner the trust specifies. Further, an owner can make specific instructions regarding feeding, housing, and veterinary care. In most states, the trusts last as long as the last animal named in the trust lives (if Fluffy and Scooter are named in the trust, and Fluffy dies first, the trust continues throughout Scooter’s life) The named trustee oversees the distribution and management of the funds while another named person cares for the pet as directed by the trust. Some owners even specify that the remaining money left in trust after the pet dies (called the remainder) goes to a non-profit animal rescue organization.

Companion animal owners have been encouraged by legal professionals to think about who they might be comfortable with assuming the day-to-day care of their pet. Many times this person is a sibling, adult child, close friend, or other individual who assures the owner that he or she is willing to accept this responsibility. In addition, owners should be aware of what specific instructions for care should be provided. Does the pet require special food or grooming? Are there special medical concerns? And, most difficultly, is there a medical condition that would necessitate euthanasia such as terminal cancer or severe injury that profoundly impacts the pet’s quality of life?

As with any legal instrument, it is important to contact a licensed attorney in your state to counsel you on the particulars of your state’s pet trust laws. In the meantime, a pet owner could write a list of some of concerns regarding care for his or her pet. While thinking about one’s own death or incapacity can be a troubling subject, some planning can alleviate future worry and concern.

"Can I put my pet in my will?"

The answer to this question depends in large part whether your state has adopted the Uniform Trust Act (UTA) of 2000 or a statute that addresses pet trusts. The UTA does not allow you to will property to an animal per se , but allows you to set up a trust for the continuing care of your pet. The Act itself is an example of the increased recognition of animal interests in the civil law arena. The provisions of the Uniform Trust Act of 2000, 1 which have been adopted in approximately 39 states, 2 lower another long-standing legal barrier for animals. The river has been forded. The traditional view in the United States has disallowed animals to be the lawful subject of a provision in a will or trust. 3 This inability of individuals to make provisions for their pets after their deaths was addressed by the drafters of the Uniform Trust Law with the drafting of Section 408 of the Act. Under this section, a trust for the care of an animal is specifically allowed along with the authorization for courts to appoint someone to enforce the trust. 4 Parallel language has also been made part of the Uniform Probate Law. 5 Thus, a pet becomes a legally relevant being, one who has income and assets which must be protected with in the legal system.

This change of legal status has occurred in that most traditional of legal areas - trust and estates. This change is of a different quality than the examples before. In this case, government action is not required for the interests of an animal to be asserted in the legal system. The civil courts have authority to act on behalf of the animals. While the primary motivation may well have been taking care of the concerns of human owner of pets, the lawyers and legislatures adopting the Uniform Law and associated state statutes apparently did not have any conceptual difficulty in accommodating animals into our existing legal community.

(a) A trust may be created to provide for the care of an animal alive during the settlor's lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor's lifetime, upon the death of the last surviving animal.

(b) A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed.

Uniform Trust Code § 408, supra note .

5 Uniform Probate Code § 2-907(1993). Adopted by Arizona:

Honorary trusts; trusts for pets; conditions

B. A trust for the care of a designated domestic or pet animal is valid. The trust terminates when no living animal is covered by the trust. A governing instrument shall be liberally construed to bring the transfer within this subsection, to presume against the merely precatory or honorary nature of the disposition and to carry out the general intent of the transferor. Extrinsic evidence is admissible in determining the transferor's intent.

MyPetProtection.com - http://www.mypetprotection.com. As stated on the website, "The Hirschfeld Pet Protection Agreement is a contract between you and anyone you choose. As a low-cost, yet effective, alternative to a pet trust, the document allows you to leave detailed instructions for the care of your pet if you become ill or die."